NINTH CIRCUIT EXAMINES WHEN EMPLOYER ACTIVITY CAN BE CONSIDERED "ADVERSE EMPLOYMENT ACTION" FOR PURPOSES OF TITLE VII CLAIMS
Appeals Court Finds that Employee Preferences Alone Cannot Serve as Basis for Discrimination Claims, but Likewise Holds that Same Preferences Can be Considered in Retaliation Claims
As a Deputy Probation Officer with the County of Los Angeles, Francisco Vasquez was assigned to a cottage supervisor’s position at youth detention facility. During the time period relevant to his complaint of discrimination and harassment, Vasquez had several conflicts in dealing with his supervisor, Kelly Berglund. Among Vasquez’s allegations, it was claimed that Berglund would yell at him and make negative comments about him in front of the youths at the center, and on at least two occasions made what Vasquez claimed to be offensive comments concerning his Hispanic heritage. Finally, after a determination that Vasquez had directly disobeyed orders issued by Berglund, Vasquez was transferred from his cottage supervisor’s position to a field probation officer’s position. Following the transfer, Vasquez filed charges with the U.S. Equal Employment Opportunity Commission (“EEOC”), alleging harassment and disparate treatment on the part of his employer. An additional claim of retaliation was brought forth when Vasquez filed suit in federal district court.
Upon review of the district court’s granting of summary judgment in favor of the County, the Ninth Circuit acknowledged that the primary issue was whether Vasquez’s transfer to the field probation officer’s position could be considered an “adverse employment action” for purposes of a Title VII discrimination claim. Vasquez had previously acknowledged that the transfer was really a lateral move, and involved no demotion, decrease in salary, or reduction in responsibility. However, Vasquez stated the transfer was adverse in that his personal preference was to remain as a cottage supervisor. In its analysis, the Court noted that it has previously taken a broad view of adverse employment actions in holding that an action can be adverse even if it is not an ultimate employment decision like termination or a change in the terms and conditions of employment. However, it had never been previously decided whether a purely subjective detriment is sufficient to establish an adverse employment action. In applying arguments from other circuits, the Ninth Circuit held that the proper inquiry is to view the action objectively to determine whether it was adverse. “Otherwise,” in the court’s words, “every minor employment action that an employee did not like could become the basis of a discrimination suit. The better approach is to determine whether a reasonable person in the same situation would view the action as disadvantageous.” Because most individuals in Vasquez’s position would not consider the transfer to be adverse, it was determined by the court that he could not maintain a claim of discrimination under Title VII.
However, in dealing with Vasquez’s claims of retaliation, the Ninth Circuit retained its partially subjective standard of adverse employment action first stated in Ray v. Henderson. In particular the court noted that the EEOC compliance standard, adopted in Ray, states that “an action is cognizable as adverse employment action if it is reasonably likely to deter employees from engaging in protected activity.” This is partly a subjective standard since it includes retaliatory behavior which “is reasonably likely to deter the charging party . . . .” The court further noted that the approach retains some objective characteristics, because it requires that the conduct in question must be “reasonably likely” to deter protected activity. Though the court believed Vasquez’s allegations of retaliation met this hybrid standard, it nonetheless denied his claims as he could not prove a causal connection between any adverse action and his exercise of protected rights under Title VII.
This decision is a modest victory for employers as it significantly narrows the occasions in which employees may be able to support claims of discrimination. Following the decision, an employee must point to employer conduct which would be objectionable to the reasonable individual and not simply objectionable to the employee’s own wishes and desires. However, employers should be cognizant that the Ninth Circuit maintains a broad definition of adverse employment action for purposes of retaliation complaints, and should consequently move carefully in dealing with employees that have brought forth complaints covered by Title VII.
Vasquez v. County of Los Angeles, No. 00-56803 9th Cir. (Sept. 30, 2002).